Monday, 30 November 2009

The newest issue of the Revue trimestrielle des droits de l'homme is out (No. 80, 2009). For those readers who are fluent in French: it contains a whole number of ECHR-related articles, dealing with a wide range of issues including jurisdiction, freedom of expression, the constitutionalization of the Court and more:

Friday, 27 November 2009

Earlier this week, Christos Pourgourides , rapporteur of the Parliamentary Assembly of the Council of Europe (PACE) on the implementation of judgments of the European Court of Human Rights, visited Italy. In his talks with government officials he specifically addressed an issue all too familiar for Strasbourg watchers: the excessive length of judicial proceedings in Italy. In the past this led to a very large amount of Court judgments finding violations of Article 6 ECHR (right to a fair trial within a reasonable time). Here are some excerpts from the press release:

Mr Pourgourides called upon members of the Chamber of Deputies and the Senate, representing both the ruling party and the opposition, to act together to adopt all the necessary measures to speed up criminal and civil proceedings. The rapporteur also invited Italian parliamentarians to establish within the Parliament a committee to monitor the implementation of European Court judgments, and was assured that they would do so. During the visit, Mr Pourgourides also met the Prosecutor General and judges of the Supreme Court, as well as a number of other officials, to discuss problems with the implementation of the Strasbourg Court’s judgments.

This is the third in a series of visits by the same rapporteur aimed at mobilising parliamentary support in states where delays or other difficulties in implementing judgments of the European Court of Human Rights have arisen. The rapporteur has previously undertaken similar visits to Bulgaria and Ukraine, and will later travel to Greece, Moldova, Romania, the Russian Federation and Turkey.

Such a dialogue, provided adequate follow-up is given to it, is essential in strengthening the enabling environment for the European Convention on which I wrote here last week. A post on Mr Pourgourides' earlier report on the general issue of failing implementation of judgments can be found here.

The current relationship between the two European courts has been discussed in some great detail while the future of that relationship has been widely neglected. This is somewhat surprising as the entry into force of the Lisbon Treaty and with it of the EU Charter of Fundamental Rights as well as the EU's succession to the ECHR are probably going to take place before too long. The article first examines Article 52(3) of the Charter, which prescribes that the ECHR be the minimum standard of human rights in the EU. It is argued that Article 52 (3) does not entail a reference to the ECtHR's case law so that the ECJ will not be bound by that case law. After an accession of the EU to the ECHR, it is likely that both courts will assert that they have exclusive jurisdiction over the ECHR in inter-state cases, which creates a jurisdictional conflict for which a solution must be found. In addition, the article explores whether after an accession, the Bosphorus case law will have a future and whether the dictum found in Opinion 1/91 will be applicable, according to which the ECJ is bound by the decisions of courts created by an international agreement to which the EC is a party.

In several cases, comparative law exercises have been given excessive weight, which has given rise to conflicting interpretations in the case law of the European Court of Human Rights (ECtHR). This use of the comparative law method by the Court has been widely criticised. The critical voices have generally argued in terms of what is prohibited by the principle of the rule of law, which the Court itself is also bound to take into account, namely the arbitrary use of power. In the light of these criticisms, it is a challenging task to examine whether and to what extent the comparative law method complies with the principle of the rule of law, which is the aim of this paper. An analysis of several ECtHR cases demonstrates that in many respects the comparative exercises of the Court indeed do not comply with the requirements set by the formal conception of the rule of law. The application of the comparative law method is neither consistent nor sufficiently transparent. In addition to exploring the problematic aspects of the application of the comparative law method, the paper also formulates some recommendations in order to bring this method into accordance with the principle of the rule of law.

Friday, 20 November 2009

Last week I attended a roundtable in London on the future of the European Court of Human Rights. It was jointly organised by a group of the main London-based human rights NGOs: Amnesty International, Human Rights Watch, the AIRE Centre, Interights, International Commission of Jurists, Justice, Liberty and EHRAC. In lively plenary discussions and in smaller groups the participants formulated possible ideas to strengthen the protection of human rights in Europe through the Court's Interlaken reform process. It was a generally shared feeling this protection should be the underlying core consideration in reforming the Court rather than only increasing the Court's efficiency. These are some of the central outcomes (in my own humble summary):

A Stronger Court One main concern was the strengthening of the Court's independence and its ability to deal in a more flexible way with the challenges of the present and the future. This increased independence could come about by giving the Court a budget detached from the one of the Council of Europe (at present every increase in the Court's budget goes at the detriment of other very essential human rights tasks of the Council of Europe) and by a more transparent selection of the candidates for appointment as judges on the national level. There are currently huge differences between states in this respect. As to flexibility, a statute (easier to change than the Convention itself, but with more status than the Court's own rules of procedure) was seen as a good prospect as long as it would not be used to weaken the acquis of the current Court, such as the binding nature of interim measures. Reforms should not be used as a pretext to turn back the tide. In any event, the Court should not again become a hostage of protracted ratification processes of reform protocols to the Convention (as happened with Protocol 14).

A Better Enabling Environment Secondly, it was considered important to significantly strengthen the enabling environment of the Court's work. This relates specifically to the implementation of the Court's judgments. The Committee of Ministers, which formally supervises such implementation, currently has a very dedicated but also very small staff of a few dozen people who have to deal with the supervision. The backlog of cases so known to Court watchers is now also a problem in the implementation phase. Increased NGO input during this phase would be helpful to get information on implementation in national cases to the Committee. Other main actors who could solidify this enabling environment are national human rights institutions and NGOs which could focus on monitoring state compliance with ECHR judgments - especially in cases of large-scale or systemic problems - and the Council of Europe's Commissioner for Human Rights who could pay structural and specific attention to the implementation of the Court's judgments in his discussions and reports concerning specific countries. To do this effectively, it is essential that the Court is as clear as possible in its judgments on what the Convention requires from states, as it increasingly does through pilot judgments. Put succinctly, the network aorund the Corut should be strengthened. More ECHR Expertise at the National Level I might add that at the other end of the horizon, where cases come to the Court, it is essential to increase expertise on how the Convention system works both among the general public but specifically among practising lawyers. ECHR as a standard part of legal education would be helpful, but also practical dissemination of information on admissiblity criteria and other matters within the state parties themselves. In that respect, an interesting pilot project (not to be confused with pilot judgments) is being undertaken in Poland - the Warsaw Pilot Project - where a lawyer has been appointed within the Council of Europe's Information Office to inform potential applicants about admissibility criteria and more generally about the ECHR. Such undertakings, either performed by a specially appointed lawyer or by national human rights institutions, might help to avoid part of the deluge of cases streaming to Strasbourg.

A short note on follow-up: the Swiss government, host of the Interlaken conference, will organise a consultation with NGOs in Strasbourg on 4 December. For those NGOs who want to get engaged on the national level to lobby their own governments, you can contact Jill Heine of Amnesty International for more information (jheine at amnesty.org). The Norwegian government (on 7 December) as well as the Parliamentary Assembly will both also organise conferences in the run-up to Interlaken.

Let us hope for a strong outcome of the Interlaken process, for the benefit over the over 800 million Europeans whom the Convention should effectively protect!

Thursday, 19 November 2009

Today the Court issued its judgment in the case of Kaboulov v. Ukraine (Appl. no. 41015/04) which in effect imposes a moratorium on extraditions to Kazakhstan on all ECHR state parties, unless credible assurances of safety would be offered by Kazakhstan. The applicant is a Kazakh national suspected of murder. In 2003 the applicant was arrested in Ukraine on the basis of an international arrest warrant. He applied to the European Court to prevent his extradition, amongst others complaining that he would face the risk of ill-treatment during detention and capital punishment.

Basing itself on reports of the Amnesty International, a UN rapporteur, the International Helsinki Federation, and the US State Department, the Court concluded that extradition would not violate the right to life, since there had been a moratorium on enforcement of the death penalty and that death sentences had been commuted to life imprisonment. By contrast, since there was uncontested information that torture and ill-treatment were regular occurences in Kazakh prisons as well as generally very poor prison conditions. Since this was a general situation, it did not matter that the applicant could not prove that he was personally and specifically in danger, since (para. 112) "it appears that any criminal suspect held in custody runs a serious risk of being subjected to torture or inhuman or degrading treatment, sometimes without any aim or particular purpose. Thus, the Court accepts the applicant’s contention that the mere fact of being detained as a criminal suspect, as in the instant case, provides sufficient grounds to fear a serious risk of being subjected to treatment contrary to Article 3 of the Convention." Extradition would thus violate article 3 ECHR.

One may note that the Court last year ruled more or less on the same issues, but then in respect to Turkmenistan. See my earlier post here. It seems that large parts of Central Asia are turning into no-go areas. If these countries ever want to have suspects extradited to them from any ECHR state party, they will have to get their act together and improve both their combat against torture and the conditions of their detention facilities. If this would indeed happen in the future, this would be an interesting de facto extraterritorial effect of Convention norms. The only possible alternative is credible assurances by Kazakhstan that the individual in question would not face the risk of treatment contrary to Article 3, but these assurances would have to be very credible in order for the Court to accept that they sufficiently countered the generally existing situation.

Wednesday, 18 November 2009

* James A. Goldston, Achievements and Challenges—Insights from the Strasbourg Experience for Other International CourtsDiscusses aspects of the procedure and practice of the European Court of Human Rights and looks at what the Court may be able to offer to legal and human rights communities across the world. Examines: (1) the importance of patience and persistence in the process of establishing human rights procedural norms; (2) the Court's flexible approach, highlighting its treatment of cases involving racial violence and discrimination against the Roma; (3) the importance of managing expectations and forward planning to meet increased demand in applications; (4) issues of transparency and accessibility; and (4) the execution of judgments.

* Peter W. Edge, Sentencing the religious defendantDiscusses the role of religion in the sentencing process of criminal trials. Contends that religious interests have significance in sentencing and that European Court of Human Rights jurisprudence can negatively impact on the freedom to sentence religious defendants. Considers: (1) the manifestation of religion as a factor leading to a reduced sentence; and (2) situations where a defendant's offending is a manifestation of religion and whose faith is sufficiently strong to resist rehabilitation. Considers how to balance the weight to be given to religious concerns in sentencing by national courts.

* Achilles C. Emilianides, Do Minimum Age Requirements Violate the Right to Stand for Election under the European Convention on Human Rights?Argues that the imposition of minimum age requirements for persons seeking to stand for elections breaches the rights enshrined in the European Convention on Human Rights 1950 Protocol 1 art.3. Discusses: (1) the active and passive aspects of the right to stand for election; (2) the specific right to free elections; (3) whether minimum age requirements breach Protocol 1 art.3, either on its own or in conjunction with art.14; (4) the need to establish that there is no reasonable and objective justification for the differing treatment regarding minimum age requirements; and (5) the scope of the "legislature " under Protocol 1 art.3.

Tuesday, 17 November 2009

Yesterday, the Court re-elected Jean-Paul Costa as its president for a period of three years. On the same day the British judge Bratza was re-elected as one of the two vice-presidents of the Court, also for three years (the other vice-president is Christos Rozakis). Finally, the Belgian judge Francoise Tulkens was re-elected as president of the Second Section of the Court. All elections were conducted by secret ballot. The re-affirmation of some of the Court's key positions comes at a crucial time. With the upcoming conference at Interlaken and with the expiry of the terms of a number of judges in 2010 (unless Russia ratifies Protocol 14, which would extend some of he terms), experience within the Court is something to be cherished.

Monday, 16 November 2009

The Committee of Ministers has replied to a recommendation of the Parliamentary Assembly concering the duty of states to co-operate with the European Court. As readers will read below, this reaction is rather non-committal in spite of its explicit support for the Assembly's stance. This is worrying since it, inter alia, refers to undue pressure on applicants, their families and lawyers...

Doc. 12067, 13 October 2009

Member states’ duty to co-operate with the European Court of Human Rights

Recommendation 1809 (2007)

Reply from the Committee of Ministers

adopted at the 1067th meeting of the Ministers’ Deputies (9 October 2009)

1. The Committee of Ministers has examined Parliamentary Assembly Recommendation 1809 (2007) on “Member states’ duty to co-operate with the European Court of Human Rights”. It has brought the recommendation to the attention of member states and forwarded it to its Steering Committee for Human Rights (CDDH). The CDDH has given an opinion, appended to this reply, with which the Committee fully concurs.

2. It points out that in its interim reply adopted at the 1009th meeting of the Ministers’ Deputies (24 October 2007), it had congratulated the Parliamentary Assembly on the work accomplished in the preparation and adoption of Resolution 1571 (2007) and Recommendation 1809 (2007) on “Member states’ duty to co-operate with the European Court of Human Rights”.

3. As stated in the recommendation itself, the Committee of Ministers has, on numerous occasions, stressed the importance of member states’ obligation to co-operate with the European Court of Human Rights. For example, in its Resolution ResDH(2006)45, the Committee of Ministers, emphasising that respect of this obligation was of fundamental importance for the proper and effective functioning of the Convention system, deplored the fact that violations of this obligation had nevertheless continued to be found in recent judgments of the Court. In this resolution, the Committee of Ministers called on contracting states to ensure that all measures had been taken so that the relevant authorities complied with requests for assistance from the Court under Article 38 of the European Convention on Human Rights (“the Convention”) and to ensure that authorities effectively seized with such requests complied strictly with them.

4. The Committee of Ministers notes that questions relating to unlawful acts from which applicants to the Court, or people close to these applicants, had suffered, have been discussed on several occasions by the Ministers’ Deputies.

5. In view of the fundamental importance of member states’ duty to co-operate with the Court, the Committee of Ministers informs the Parliamentary Assembly that, in accordance with the opinion of the Steering Committee for Human Rights (CDDH), it is intending to draw up a draft resolution addressing the concerns expressed by the Assembly in its Resolution 1571 (2007) and its Recommendation 1809 (2007), in particular with regard to the protection of applicants, their lawyers and members of their family, the investigations to be carried out and the measures to be taken.

Appendix to the reply

CDDH opinion on Parliamentary Assembly Recommendation 1809 (2007) and Resolution 1571 (2007) on “Member states’ duty to co-operate with the European Court of Human Rights”

1. The Steering Committee for Human Rights (CDDH) concurs entirely with the Assembly that whilst states generally co-operate well with the Court, it is a matter of grave concern that isolated cases persist of interference with applicants, their families and their lawyers and other representatives.

2. The CDDH agrees fully with the Assembly’s conclusion that “the right of individuals to apply to the Court is a central element of the human rights protection mechanism in Europe and must be protected from interference at all levels.” It strongly supports the philosophy running through the Assembly’s report and adopted texts and shares the Ministers’ Deputies’ conclusion that the issues raised are of great importance for the effectiveness of the European system of human rights protection.

3. All States Parties to the Convention have undertaken not to hinder in any way the effective exercise of this right (Article 34 of the Convention). Furthermore, the Court’s case law has now clearly established that all States Parties are obliged to comply with an order of interim measures made under Rule 39 of the Rules of Court and that non-compliance may imply a violation of Article 34.

4. In particular, the CDDH would underline the Assembly’s recommendations to member states made in paragraphs 17.2 and 17.3 of Resolution 1571 (2007). These duties to protect and to investigate reflect states’ basic positive obligations that are an essential characteristic of the Convention system as a whole.

5. As regards the question posed by the Ministers’ Deputies concerning the advisability of drawing up a recommendation to member states along the lines proposed by the Assembly, the CDDH is of the opinion that such a course of action would not be appropriate at present. It suggests that the Deputies, by means of a resolution, echo the worries expressed by the Assembly in particular in paragraphs 17.2 and 17.3 of the aforementioned resolution. Finally, it considers that the issue of Rule 39 of the Rules of Court, including the question of its status, should be examined in detail in the context of future work on a Statute for the Court.

Wednesday, 11 November 2009

The Lisbon Treaty which will reform the European Union will, after the final signature of the Czech president, enter into force in December. One of the innovations is the possibility for the EU to accede to the European Convention on Human Rights. Lluís Maria de Puig, the President of the Parliamentary Assembly of the Council of Europe (PACE), welcomed this development last week. He expressed the hope that accession would be a priority for the EU:

"As from next month, the 27-member EU will be in a position to become more democratic, more transparent and more effective. First and foremost, however, the entry into force of the Lisbon Treaty will afford the EU an opportunity to strengthen the principle of legal certainty by acceding to the ECHR of the Council of Europe, so that the actions and decisions of EU institutions will be subjected to the same external scrutiny as those of the member states.

Although there is now broad support for this accession, it is important that the declarations of intent swiftly be matched by deeds. As our Assembly recently pointed out, accession will convey a strong message of a clear commitment to the protection of human rights not only within the boundaries of the European Union but also Europe-wide, in keeping with the community of values shared by the Council of Europe and the European Union.

From now on, the preparations for accession must be top of the agenda in discussions between the two organisations."

However, the other end of the equation should not be forgotten: it is Protocol 14 to the ECHR which provides for EU accession. As readers of this blog will know, this Protocol still awaits its last ratification by the Russian Federation. Would the prospect of making the EU more accountable for human rights violations be a reason for the Russian Duma to look more postively at Protocol 14? In any event, Protocol 14-Bis, which was meant to increase the speed of reforms of the Court does not contain the EU accession provision from Protocol 14. No help can thus be expected from that side. EU and ECHR - never the twain shall meet?

This essay, which will in due course appear in M Andenas and S Vogenhauer (Eds), A Matter of Style? The Form of Judgments in the United Kingdom and Abroad: Essays in Honour of Lord Bingham of Cornhill, Hart Publishing, forthcoming, examines the structure of judgments in the European Court of Human Rights, and offers some reflections on the extent to which the form of judgments contributes to the aims of the Convention system.

This book analyzes how the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) deal with general international law. In the light of the concerns of various authors about the fragmentation of international law and the “human rightist” aspirations of human rights law, the question arises whether these human rights courts put the unity of general international law into danger.

The main idea of this study is that the ECtHR and the IACtHR may in principle only “elaborate” and not “depart” from or “contradict” general international law. A departure is only acceptable if a clear lex specialis has been established for human rights law.

The author researches whether or not the sometimes different case law of both human rights courts fits into this assumption. Almost all topics of general international law that have been dealt with by the ECtHR and IACtHR are analyzed: reservations, application of treaties ratione temporis, ratione loci and ratione personae, interpretation rules, the theory of the sources of international law, jus cogens, modification and withdrawal from treaties, diplomatic protection, exhaustion of local remedies, State responsibility (including the law of reparations), foreign State immunity and State succession.

This volume is of interest not only to human rights lawyers, but to all international lawyers. It explains how certain traditional concepts of general international law appear to function, and how other concepts need to be refined in order to create a more effective international order. This analysis may be a source of inspiration for other subsystems of international law like environmental law, WTO law, maritime law, space law, etc.

At the same publisher, a guide for practioners and others interested in bringing cases to the European Court of Human Rights has just been published by my colleague Yves Haeck - in Dutch: Procederen voor het Europees Hof voor de Rechten van de Mens, an impressive and very complete roadmap to Strasbourg.

Wednesday, 4 November 2009

Religious symbols in public places have been a bone of contention in public discussions in many places around the world. Yesterday, the European Court added its contribution in the judgment Lautsi v. Italy. (Appl.no. 30814/06). The case concerned a complaint by a mother of children of 11 and 13 years old that the public school which they attended had a crucifix in each classroom. She contended that this was contrary to secularist principles by which she wanted to raise her children. Italian laws and regulations, partly dating from the Mussolini era, obliged public schools to display the crucifix in classrooms. In the Strasbourg proceedings Italy had argued that that the crucifix was not only a religious symbol, but also a symbol of Italian state and culture and therefore even could represent secularism. The reasoning of the Italian state, summarised in the judgment, is worth reading for the mere curiosity of its logic alone (even if one may understand the underlying concerns). The Court disagreed and found - unanimously - a violation of the freedom of religion (Art. 9 ECHR) jointly with the right to education (Art. 2 of Protocol 1). The Court, amongst others, took into account the nature of the religious symbol concerned (amongst the plurality of meanings, the Court held that the religious connotation of the crucifix was dominant) and its impact on young children. In two of the key paragraphs (para. 55-56) the Court held that the demands of pluralism in public schools called for a change in the Italian situation:

One may note, that the Court thinks this applies in general in the exercise of public functions by the state and particularly (but not solely) in classrooms.

Italy has already indicated that it wants the Grand Chamber of the Court to have a look at the case. Even if the judgment was unanimous - which would decrease chances for reconsideration - this could happen since it is an issue which can be considered of major importance in many ECHR state parties. In addition, a bit more clarity would be welcome on the extent to which this judgment should be explained as a complete and aboslute ban on religious symbols in public schools (as the reasoning of the judgment seems to argue towards that conclusion) or simply that the obligation for public schools to display such symbols is contrary to the Convention (as the final part of the judgment seems to indicate as one of the key reasons for concluding that the Convention was violated). The judgment seems to lean towards the first of these two explanations. Some pragmatism might be called for here and this will certainly not be the end of the discussion of this issue.

For coverage in the European press, see the article in yesterday's Guardian newspaper here and in Le Monde here. Both newpapers report that the Italian government has classified the Court's ruling as ideologically motivated. The judgment has provoked strong reactions amongst Italians themselves as well, with a on online petition being signed by tens of thousands of people within a day. This is the report from the Italian newspaper Corriere della Sera, in which - one may note - the nationality of all the judges in the Chamber are mentioned (sic!).

Tuesday, 3 November 2009

On Monday 9 November, the Athens Bar Association will organise a seminar entitled '1959-2009: 50 years since the creation of the European Court of Human Rights'. Speakers at this event include the Court's president Jean-Paul Costa, President of the ECtHR, the Greek judge in Strasbourg (and one of the Court's vice-presidents) Christos Rozakis, and the head of the Greek section in the registry of the Court, Marialena Tsirli. Also speaking: Dimitrios Paxinos, the President of the Athens Bar Association, the Presidents of the Supreme Courts of our Greece, and the Minister of Justice. The event starts at 17h30 at Odos Aiolou 82-84 in Athens. Later this month a special issue of the Greek law journal Nomiko Vima will be published on the same theme.

Monday, 2 November 2009

Each month, our library at the Netherlands Institute of Human Rights SIM, publishes online overviews of human rights articles in academic journals and yearbook - a truly helpful resource. Here are some references to ECHR-related articles in the most recent overview of some more unlikely series in which you can find something on the ECHR: